Rubman v. U.S. Citizenship & Immigration Servs.
| Decision Date | 31 August 2015 |
| Docket Number | No. 14–3733.,14–3733. |
| Citation | 800 F.3d 381 |
| Parties | David RUBMAN, Plaintiff–Appellant, v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES and United States Department of Homeland Security, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Scott D. Pollock, Pollock & Associates Chicago, IL, for Plaintiff–Appellant.
Craig A. Oswald, Office of The United States Attorney, Chicago, IL, for Defendants–Appellees.
Before BAUER and SYKES, Circuit Judges, and REAGAN, Chief District Judge.*
H–1B visas allow U.S. companies to hire noncitizen workers with specialized skills. The United States Citizenship and Immigration Services (“CIS”), an agency within the Department of Homeland Security (“DHS”), is responsible for their issuance. David Rubman sent CIS a request under the Freedom of Information Act (“FOIA”) seeking “copies of all documents reflecting statistics ... about H–1B visa applications” from the last four years. CIS responded with a single document: a data table that the agency had created to respond to his request. Rubman doubted the table's accuracy and insisted that CIS provide the documents he originally asked for: “ ‘ALL documents reflecting statistics' ” about H–1B visa applications, including internal statistical reports and e-mails. CIS refused, insisting that additional records would not be helpful and would “only create additional confusion.” Rubman sued, challenging the adequacy of the search that CIS performed in response to his FOIA request. The district court granted summary judgment in favor of the agency.
We reverse. An adequate search is one that was both performed in good faith and reasonably designed to uncover the requested records. CIS failed to conduct an adequate search as required by law when it unilaterally narrowed Rubman's request for “all documents” to a single, newly generated statistical table.
The H–1B visa is a temporary, nonimmigrant visa for workers in “specialty occupations,” defined as those that typically require at least a bachelor's degree in a specific field of study. See 8 U.S.C. § 1184(i). Visa holders are able to work in the U.S. for three years (extendable to six), after which they must apply for a different visa or return to their home country (there's no path to citizenship). By statute the number of H–1B visas that can be issued per fiscal year is capped at 65,000. See id. § 1184(g)(1)(A)(vii). An additional 20,000 H–1B visas are available for workers with postgraduate degrees from American universities, and visas awarded to governmental, nonprofit, and educational research entities are not counted toward either limit. See id. § 1184(g)(5)(A)-(C). Visa petitions are submitted by U.S. employers on behalf of the noncitizen workers they want to hire, and the employers must demonstrate that the visa recipients will enjoy the same working conditions and wages as comparable domestic employees. See id. § 1182(n)(1)(A). The H–1B visa program is controversial, and recent proposals to raise the cap have been hotly contested. See, e.g., Tim Henderson, States, Cities Call for Skilled Foreign Workers Amid Abuse Claims,The Pew Charitable Trusts : Stateline (June 8, 2015), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/6/08/states-cities-call-for-skilled-foreign-workers-amid-abuse-claims.
The process by which CIS administers the H–1B visa program is outlined in 8 C.F.R. § 214.2(h)(8)(ii)(B). In short, the agency projects how many petitions it must process to issue a full complement of visas, taking into account historical rates of denials, withdrawals, and revocations. Employers submit petitions starting on April 1 of each year, and the filing period is closed once CIS receives its target number (which often takes just a few days). If the agency receives more petitions than it projects it will need, a lottery is conducted; selected petitions are issued a receipt number while the others are rejected and returned, along with their filing fees. The receipted petitions are then processed and visas awarded. Recipients can start work on October 1.
David Rubman is a retired immigration attorney and former adjunct law professor at Northwestern University. On May 10, 2012, he submitted a FOIA request to CIS for the following:
Rubman closed his FOIA request by saying, “If you have any question about what documents I am seeking, please contact me so that we can both be on the same page about what I am asking for.”
CIS replied by letter on September 17. The agency stated, In substance, the agency's response consisted of a single statistical table purporting to show the data Rubman had requested. Beneath the table was a list of indecipherable database query “parameters” used to create the table. Also listed was the date the statistical table was generated: August 14, 2012, about three months after Rubman's FOIA request.
On October 1 Rubman wrote CIS, pointing out that the agency's table did not classify receipts by fiscal year as he'd requested; if it had, the total number of receipted petitions per year would equal the sum of the approvals, denials, and withdrawals for that year (i.e., every receipted petition would be accounted for). CIS responded by e-mail on October 12. The agency “sincerely apologize[d] for any inconvenience our original response may have caused” and attached a revised table.
Rubman wrote to CIS once more on October 22. He contended that the new table was “clearly inaccurate” and “cannot be reconciled” with either the first table CIS had provided or other publicly available data. For example, Rubman pointed out that the first table showed three-and-a-half times as many denials as the second table. After explaining the apparent incongruities, Rubman concluded (and we quote him without alteration):
In light of this serious discrepancy, I must insist that you provide me the documents I originally asked for: “ALL documents reflecting statistics ... about H–1B visas that were assigned a receipt number for (2009, 2010, 2011 and 2012].” (emphasis added). I am sure there are, inter alia, weekly and monthly statistical reports as well as emails discussing the calculation of when the cap is reached.
Jill Eggleston, CIS's Director of FOIA Operations, responded on November 14 stating that the second table was “complete and accurate.” She explained that CIS created the table because it had interpreted Rubman's initial request as one for statistics. Regarding his request for additional documents, Eggleston noted that “counting the cap is a very complex process.” She continued:
Internal emails discussing the calculation of when the cap will be reached would not provide you with an accurate calculation of H–1B cap filings for fiscal years 2009 to 2012, as they represent ongoing calculations and monitoring of cap filings until the cap closed each fiscal year. Additionally, they would not alter the outcome of the results that were provided to you on October 12, 2012, but rather only create additional confusion.
Eggleston closed by reviewing in detail the alleged statistical discrepancies. In short, CIS's position was that the “reports contain information based on different data points about different subsets of H–1B petitions,” and “[a]s a result, the data cannot be compared.”
Rubman filed an administrative appeal with CIS, which was denied because the agency considers a request that has been “granted in full” unappealable. As permitted by FOIA, Rubman then filed this suit in federal court.1
Settlement negotiations were tried and failed, and the case was submitted to the court on cross-motions for summary judgment. The judge observed that “the facts of the case at bar are unique in that the produced records mainly consisted of a Table that allegedly conveyed the information requested, as opposed to a disclosure of purely internal documents, which is more common in FOIA cases.” The judge went on to hold, however, that Rubman's initial FOIA request was “non-specific and unwieldy” and therefore CIS's interpretation of the request as one for statistics was reasonable. The judge also concluded that Rubman's October 22 letter, which specifically requested internal reports and e-mails, was an impermissible “modification” of his original FOIA request to which CIS was not obliged to respond. The judge accordingly entered judgment for CIS, and Rubman appealed.
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Toward that end, FOIA provides that agencies “shall make ... records promptly available to any person” who submits a request that “(i) reasonably describes such records and (ii) is made in accordance with [the agency's] published rules.” 5 U.S.C. § 552(a)(3)(A). The Act is “broadly conceived,” and its “basic policy” is in favor of disclosure. Robbins Tire, 437 U.S. at 220,...
To continue reading
Request your trial
-
United States v. Prasad, 19-10454
...if there are sufficient petitions to meet the cap. 8 C.F.R. § 214.2(h)(8)(iii)(A)(5)(ii); Rubman v. U.S. Citizenship & Immigr. Servs., 800 F.3d 381, 384 (7th Cir. 2015). USCIS denies the petitions that are not selected in this process without review. Rubman, 800 F.3d at 384. [5] Prasad esti......
-
White v. Exec. Office of U.S. Attorneys
...exemptions and three special exclusions for law-enforcement records. See 5 U.S.C. § 552(b) - (c). Rubman v. United States Citizenship & Immigration Servs. , 800 F.3d 381, 386 (7th Cir. 2015). In creating the exemptions to FOIA disclosure, "Congress sought ‘to reach a workable balance betwee......
-
White v. Dep't of Justice
...exemptions and three special exclusions for law-enforcement records. See 5 U.S.C. § 552(b) - (c). Rubman v. U.S. Citizenship & Immigration Servs. , 800 F.3d 381, 386 (7th Cir. 2015). In creating the exemptions to FOIA disclosure, "Congress sought ‘to reach a workable balance between the rig......
-
United States v. Prasad
...process if there are sufficient petitions to meet the cap. 8 C.F.R. § 214.2(h)(8)(iii)(A)(5)(ii) ; Rubman v. U.S. Citizenship & Immigr. Servs. , 800 F.3d 381, 384 (7th Cir. 2015). USCIS denies the petitions that are not selected in this process without review. Rubman , 800 F.3d at 384.5 Pra......